May 7, 2020
With the federal and provincial governments having outlined plans for restarting out economy you may be considering reopening your workplace in the coming days or weeks.
I know that there are many factors that will weigh into your decision and I have prepared a summary of employment and labour law considerations that should be included.
First and foremost, of course, is the safety of your employees and your obligation to provide a safe workplace under the Occupational Heath and Safety Act and Employment Standards Act.
In that regard, your workplace must follow all the ‘normal’ guidelines as well as new guidelines that have been introduced in response to mitigating the risk of COVID-19 infection. I have outlined them below.
I have also included information on issues regarding privacy and human rights that should be taken into account.
You may have questions surrounding actions you or your employees may have implemented such as Temporary Layoffs, Employment Insurance Sickness Benefits or the federal Work-Sharing program and how these may effect reopening.
Please contact me for advice on the specifics of your situation, for assistance working through your staffing matters or with any questions.
Deciding whether and when to reopen a workplace
As an employer you must first determine whether you can legally reopen your physical workplace(s).
Ontario is currently in Stage 1 of a three stage reopening program outlined in the government’s “A Framework for Reopening our Province”.
In conjunction with the Framework detailed sector-specific workplace safety guidance was released for multiple industries, including construction, utilities, health care, office, retail, hospitality and manufacturing. This guidance can be accessed »» here
Summary of Ontario Reopening Stages
In Stage 1, among businesses that were ordered to close or restrict operations, workplaces that can immediately meet or modify operations to meet public health guidance and occupational health and safety requirements will be permitted to reopen.
In Stage 2, more workplaces will be opened, based on risk assessments, which may include some service industries and additional office and retail workplaces.
In Stage 3, all workplaces will be opened responsibly.
There is no predetermined schedule for Stages 2 and 3, they will be implemented as public health permits.
Stage 1 came into effect May 4, allowing certain businesses to reopen:
- Garden centres and nurseries with curbside pick-up and delivery only
- Lawn care and landscaping;
- Additional essential construction projects that include:
- shipping and logistics;
- broadband, telecommunications, and digital infrastructure;
- any other project that supports the improved delivery of goods and services;
- municipal projects;
- colleges and universities;
- child care centres;
- schools; and
- site preparation, excavation, and servicing for institutional, commercial, industrial and residential development;
- Automatic and self-serve car washes;
- Auto dealerships, open by appointment only;
- Golf courses and marina may prepare for the upcoming seasons but may not open to the public
On May 6, Premier Ford announced the following businesses may open:
- May 8, garden centres and nurseries can reopen for in store payment and purchases, operating under the same guidelines as grocery stores and pharmacies
- May 9, hardware stores and safety supply stores may reopen under the same guidelines
- May 11, non-essential retail stores with a street entrance may begin offering curbside pickup and delivery, in accordance with the Ministry of Health’s Guidance for Essential Workplaces and occupation health and safety requirements
Additionally, essential construction projects that may continue have been expanded to include new below-grade multi-unit residential construction projects like apartments and condominiums.
The Ontario Ministry of Health has issued a comprehensive Guidance for Essential Businesses document that contains information and links that can be used for every business.
Reopening safely
Having determined that your workplace can legally reopen, you will need to consider whether it can be opened safely. This exercise consists of
- assessing the workplace to determine whether you are able to satisfy the duty to provide a safe and healthy workplace by implementing controls to address the hazard of COVID-19, and
- implementing those controls.
Workplace safety assessment
The assessment of the workplace should focus on areas and situations in which potential transmission may occur.
You may find it helpful to download and reference this document from WorkSafeBC in British Columbia. While it is from a different jurisdiction, it includes practical suggestions such as conducting a walk-through of the workplace to identify specific conditions or tasks that may increase the risk of exposure of employees to COVID-19.
If practical and possible, my suggestion is that this assessment be done in cooperation with an employee representative. In the case of collective bargaining agreements this is almost certainly necessary. Please contact me for advice.
Remember that all decisions must be taken on a reasoned basis, taking into consideration governmental and public health guidance and the employer’s duty of care to its employees, and in a manner consistent with the employer’s workplace health and safety policies.
NOTE: It is important to ensure that all decisions related to workplace health and safety are properly documented.
Workplace safety implementation
After assessment, employers are required to implement preventative measures to ensure workers are not exposed to conditions which could be harmful to their health and safety while working.
These measures can be implemented through engineering, or through administrative controls.
For engineering controls to address the hazard, the hazard should be removed or a barrier introduced between the hazard and the worker.
Administrative controls include changes in workplace policies or procedures to reduce or minimize exposure to a hazard. To a large degree these will centre around physical distancing measures and ensuring the physical distancing requirements are maintained.
Employers should keep in mind that physical distancing considerations do not only apply to interactions between employees but also may apply to interactions with customers, suppliers, patients, visitors and members of the public.
The ‘Checklist’ below may be helpful in assessing your workplace and evaluating ways to assure its safety.
Limiting the number of employees and others in the workplace
- Encouraging employees to continue working from home if they are able.
- Allowing only a minimum amount of staff to return to the physical workplace.
- Implementing staggered or rotating returns to the workplace to reduce the number of employees present at the workplace at any one time. For example, specifying which day(s) an employee or group of employees may come to the workplace.
- Controlling the number of customers and other third parties entering and exiting the workplace.
Encouraging physical distancing at work
- Limiting entrance and exit points. Consider whether emergency evacuation plans need to be updated to address changes to access points.
- Rearranging workspaces and floor plans, including increasing separation between desks, workstations, and furniture or fixtures in common spaces such as lunchrooms, meeting rooms, waiting rooms, and washrooms. Examples include taping off every second urinal in a men’s washroom and removing chairs in common spaces to ensure adequate physical distance.
- Controlling access to elevators and areas within the workplace, including updating key cards to limit access and limiting the number of people who may ride in an elevator at a time.
- Adjusting scheduling, such as start/end times and breaks to reduce the number of people using common spaces (such as break rooms, kitchens, and bathrooms) and elevators at the same time.
- Implementing signage to ensure distance is maintained, for example using taped arrows to indicate “one way” traffic in hallways, taping off waiting areas to prevent bottlenecks in small spaces such as washrooms, taping off areas around workstations, appliances, machines, photocopiers, etc. to indicate appropriate two-metre spacing.
- Discouraging or cancelling all non-essential activities, social events and in-person meetings.
- Staggering appointments and meetings with customers or other meeting attendees.
Limiting physical contact and minimizing interpersonal interactions
- Installing physical barriers between workers or between workers and third parties. A common example of a physical barrier is the plexiglass partitions currently found in many grocery stores and pharmacies.
- Removing all communal items that cannot be easily cleaned, such as newspapers, magazines, and candy bowls.
- Reducing or eliminating the sharing of tools and equipment (such as keyboards, pens and other tools) between employees, or if sharing is required, providing solution for employees to disinfect tools and equipment between uses.
- Using technology to minimize interactions, such as using technology to share documents and going “cashless”.
Worker and workplace hygiene
- Promoting regular and thorough hand-washing and good hygiene by employees and other individuals present in the workplace. For example, by ensuring employees have access to soap and water or alcohol-based sanitizer, putting hand sanitizer dispensers in prominent places around the workplace, ensuring these dispensers are regularly refilled, and placing informational posters throughout the workplace.
- Developing procedures for regularly scheduled enhanced cleaning and disinfecting of the workplace, particularly high-contact items such as doors, handles, faucet handles, keyboards, and shared equipment. This document from the Government of Ontario provides hygiene guidance and suggestions,
- Evaluation of workplace environments as to whether ventilation and filtration provided by heating, ventilating, and air-conditioning systems can reduce the risk of transmission through the air.
Preventing sick employees from being at work
- Preventing symptomatic employees from attending the workplace by developing written policies and procedures employees must follow if they are sick or suspect they have come into contact with someone diagnosed with COVID-19. This could involve requiring employees to complete a daily “fit for work” questionnaire or COVID-19 self-assessment prior to attending the workplace.
- Requiring employees to take a temperature test before entering the workplace. Note that this type of precaution is not without risk and care should be taken to ensure that employees’ rights are respected Please contact me for advice.
- It is also important to keep in mind the limitations of temperature checks; employees can be contagious prior to having a fever, so this measure will only be partially effective and should only be used as part of a more comprehensive screening program.
Implementing appropriate policies
Consider developing policies and practices to:
- Limit nonessential travel to other locations or worksites.
- Ensure that all employees are trained on all COVID-19 related policies and procedures, including up-to-date education and training on COVID-19 risk factors and protective behaviours (for example, transmission points, equipment cleaning processes, cough etiquette and handwashing).
- Retain the names and contact details of stakeholders attending the worksite to assist public health authorities trace people who may have been exposed to COVID-19 at the worksite. Such action should only be taken after carefully considering and adequately addressing the privacy related concerns this may raise.
- Ensure that policies are kept up to date and being followed, for example through regular audits to ensure employees are maintaining appropriate physical distance.
- Respond appropriately to employee concerns or refusals to work due to workplace health and safety concerns, including providing advance policy for consultation with employers’ joint workplace health and safety committees and appropriately implementing additional policies and controls to address hazards identified by employees on and ongoing basis.
- Check with vendors, suppliers and landlords on measures they have implemented to manage COVID-19 related risks.
Personal protective equipment (PPE) for employees – face masks, gloves and eye protection
The government of Ontario has advised that PPE should only be used when all other mitigation measures have been implemented and that it is effective only if it is appropriate for the situation and people wear it correctly.
There is a danger that PPE can give non-medical employees an undue sense of security. To avoid this, ensure training for all PPE, including gloves, that includes the fit, use, care, putting on and taking off, maintenance, cleaning and limitations of the PPE.
NOTE: With all forms of PPE in high demand, any reopening plan that requires PPE should take into account what forms of PPE the employer has the ability to obtain.
Non-medical masks
The current advice from Canada’s Chief Medical Officer is that individuals should wear a non-medical face mask when they are unable to maintain proper physical distance from others.
A non-medical mask can reduce the chance of an individual’s respiratory droplets coming into contact with others or landing on surfaces. The use of a non-medical mask is primarily to protect an employee’s co-workers, as opposed to protecting the individual wearing the mask.
If you wish to require or encourage employees workers to wear a mask, you should make those masks available, and the provision should be accompanied by a policy on non-medical face masks and training for employees on how to properly use a non-medical mask, as well as their limitations.
NOTE: N95 masks for non-medical use:
The Government of Canada does not recommend N95 masks for the general public and medical masks such as the N95 are only recommended for health-care workers and people who are taking care of someone in close settings such as acute care, primary care and long-term care facilities.
Privacy, human rights and other considerations
Symptomatic employees
Before reopening you should develop a workplace infection control plan that includes procedures for employees displaying symptoms of COVID-19 infection, which includes fever, cough, or shortness of breath.
You may also wish to distribute this plan to employees so that they will be aware of the procedures.
Regarding symptoms and actions to take if employees exhibit symptoms, the government of Ontario offers this advice:
- If a worker develops COVID-19 symptoms, they should return home and self-isolate immediately.
- If they cannot leave immediately, the worker should be isolated in a specific space until they are able to leave.
- If the worker is very ill, call 911 and let the operator know that the person may have COVID-19.
- If the worker does not have severe symptoms, they should use Ontario’s self assessment tool, and seek assessment and testing (e.g., at an assessment centre) if indicated to do so. They can also contact their health care provider or Telehealth Ontario (1-866-797-0000).
Under the Ontario Human Rights Code OHRC), an employer may not discipline or terminate an employee who has been diagnosed with COVID-19 or is perceived to have COVID-19 (because, for example, they are exhibiting certain symptoms).
An employer should not send an individual employee home, or ask them not to work because of concerns over COVID-19, unless the employer’s concerns are reasonable and consistent with information from medical and Public Health officials.
If an employee tests positive for COVID-19 the OHRC policy position is that the Code ground of disability is engaged in relation to COVID-19, as it covers medical conditions or perceived medical conditions that carry significant social stigma.
Employers have a duty to accommodate employees under the Code in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety.
You should also be aware that employers have an obligation to report occupational illness to the Ministry of Labour where employees were exposed to the illness in the workplace, or if the employee files a claim for occupational illness with the Workplace Safety and Insurance Board (“WSIB”).
Accommodating employee requests not to return
Higher-risk individuals
Certain individuals may be at greater risk of contracting COVID-19 or of having more severe complications from COVID-19. According to the Government of Canada, individuals at higher risk include older adults, people with weakened immune systems, and people with medical conditions including heart disease, hypertension, lung disease, diabetes and cancer.
You may wish to have in place a self-disclosure policy whereby employees can disclose that they are at a higher risk.
NOTE: This policy must ensure that personal details or sensitive medical information remain confidential. Please contact me for advice.
If the higher risk employee is currently working from home, it may be advisable to continue this arrangement even though the workplace has been reopened.
Employees with childcare issues or caring for a sick relative
Under the OHRC ‘an employer must accommodate an employee who has care-giving responsibilities up to the point of undue hardship.’
Emergency Care Benefits were introduced on March 25 and available for a period of up to 15 weeks to assist
- EI-eligible and non EI-eligible working parents including those that are self-employed who must stay home without pay because of children who are sick or who need additional care because of school closures.
- Non EI-eligible workers including the self employed who do not have access to paid sick leave and are
- Sick, quarantined, or who have been directed to self-isolate
- Taking care of a family member who is sick with COVID-19, such as an elderly parent or other dependents who are sick
In some provinces, employees are eligible for job protected leaves if they are required to provide care to a person for a reason related to COVID-19 (i.e. school closure or sickness).
If an employee requests to take a certain unpaid statutory leave of absence and meets the qualifying requirements of that statutory leave, the employer must grant it and may be precluded from terminating the employee’s employment for the duration in the leave.
For employees making such requests, employers may consider:
- Permitting the employee to work from home, if possible.
- Whether the employee is eligible for paid leave in accordance with the employer’s existing contracts, policies and practices.
Employees concerned about workplace safety
You may be advised by one of your employees that they are concerned about the possibility of contracting the coronavirus in the workplace and may, in some cases, refuse to work.
Employees who believe that a condition in the workplace is likely to endanger their health or safety can refuse to work under the Occupational Health and Safety Act.
An employer cannot threaten to discipline an employee who refuses to work on this basis, and must comply with employer obligations under applicable occupational health and safety legislation.
- the employer must investigate the situation immediately and attempt to work out a satisfactory resolution with the employee
- If that is not possible, the employer must notify a Ministry of Labour inspector or officer, as required by provincial legislation
Relevant Links:
Government of Canada COVID-19 Information and Response
Government of Ontario COVID-19 Information and Response
Government of Ontario Framework for Reopening
Government of Ontario Workplace Safety Guidance
Government of Ontario COVID-19 Guidance: Essential Workplaces
COVID-19 and Ontario’s Human Rights Code – Questions and Answers